Human rights: in praise of practice over principle

nick cowen, 12 December 2011

Sigrid Rausing offers a powerful and clear defence of keeping European Court of Human Rights’ decisions superior to the democratic will of Parliament. But her argument is lacking in a number of important respects and, in the end, risks weakening the power of the concept of human rights to command reasoned agreement in a democratic society.

Rausing claims that ‘Like health and safety, human rights is becoming entangled in a web of urban myths and populist conservative attacks.’ Certainly, there are some myths about particular cases that have crept into the debate. But there are also real issues regarding the rights of serious offenders and no amount of populism-bashing can make them vanish from the records.

Take deportation orders. The ECHR has ruled in separate cases that men convicted of heroin trafficking and sexual assault have retained the right not to be deported back to their country of origin, if they can show a familial connection in the UK. Looking at each case, one might see some merits in the defendants’ arguments. But this isn’t a question about the precise merits of every individual case, but who decides on those merits: our courts on the basis of laws approved by our representatives, or by judges based elsewhere on the basis of legal interpretations that are usually far from clear. These issues exist. They are not populist myths.

Rausing also claims, ‘Human rights is about principles’ before going on to defend the votes for prisoners on the basis of equal treatment. I think this does a disservice to human rights which, at their core, are steely pragmatic in the best of senses. They were established at the end of the Second World War when it was apparent that modern states were no less capable of utter brutality than ancient despots or mediaeval monarchs (but were armed with more powerful technology). On the basis of grim experience, human rights law attempted to constrain states and other powerful actors to prevent them from persecuting individuals and minority groups.

As a result, most of the content of human rights law is absolutely necessary for the maintenance of liberal democratic societies. For example, freedom of speech is essential because allowing widespread censorship provides a weapon to authorities who wish to silence dissent. People who have been mistreated can be cowed into submission by the threat of sanction if they speak out. Free deliberation in a democracy is impossible without allowing controversial views to be heard without fear of penalty.

Take another example regarding prisoners: authorities must provide physical security and basic humane conditions for those in custody. To offer any less would open convicts to harm beyond what was appropriate for their crimes, bringing the judicial system into disrepute. It could discourage juries from finding offenders guilty for fear that the punishment would be a greater crime than the initial offence. These human rights in a justice system are essential to prevent a total breakdown of law into the arbitrary imposition of harm and degradation, and it is precisely these sort of rights that campaigners and judges are right to focus on.

By contrast, the right of prisoners to vote is essentially symbolic. Voting is not a practical way of changing one’s personal circumstances in the same way as, for example, having a right to legal counsel. The prison population is sufficiently small that it could never actually alter the outcome of a general election even if it voted as a bloc (which it never would). Moreover, restricting the franchise in this way is non-arbitrary and predictable: any citizen can avoid being unable to vote simply by not committing a serious enough crime that warrants incarceration.

Compare this with the general right to suffrage. Discussing the history of the Levellers, Tim Black explains in Spiked: ‘those who fought for political emancipation, the struggle for enfranchisement was tied up with the urge to exercise greater control over their lives. That is, the vote meant something: it promised self-rule; it promised sovereignty’. For the people as whole, a broad franchise, without arbitrary restrictions, is essential. By contrast: ‘those making the case for prisoners voting, whether slumbering at the ECHR or campaigning at the Prisoners Reform Trust, seem to have little interest in the actual stuff of freedom. As they see it, the vote’s primary purpose is to make prisoners feel better about themselves.’

In other words, human rights are being treated as a sort of individual and social therapy, rather than a practical means to rein in the powers of government and offer essential protections to individuals. People want to give the vote to prisoners not because it will change collective decision-making but because it is a ‘nice’ thing for prisoners to have.

A slightly different point applies to the deportation of convicted offenders. So long as it is widely understood that residence in the UK is conditional for foreign nationals on not engaging in crime, then this, arguably, isn’t really a question of human rights either. Tragic as individual cases of families being broken up by deportation proceedings might be, the simple way to avoid it is for foreign nationals not to engage in crime that threatens the community around them. Once the crime has been committed, the situation is already a tragedy of sorts. Policy-makers face the trade-off of the interests of the convicted and the interests of the community. To prefer, as a matter of policy, the interests of the community in these circumstances over those of the offender (or their family) is not to abridge human rights. A society that deports dangerous foreign convicts is not diminishing the ability of its law-abiding citizens, or residents, to live free and fulfilling lives.

When human rights are invoked to defend abstract principles that are not actually very widely accepted by the general public but are wedded to highly particular ethical positions, their power over the really important matters is reduced. Properly understood, human rights stand at the very foundation of democracy. Misunderstood, human rights start to compete with, rather than support, democracy.